Campbell v LOR [2024] QMC 18

MAGISTRATES COURTS OF QUEENSLAND CITATION: Campbell v LOR [2024] QMC 18 PARTIES: SERGEANT MELISSA CAMPBELL (Applicant) V LOR (Respondent) FILE NO/S: MAG-00016742/24(4) DIVISION: Magistrates Courts PROCEEDING: Application for an Offender Reporting Order ORIGINATING COURT: Gympie DELIVERED ON: 29 August 2024 DELIVERED AT: Gympie HEARING DATE: On the papers MAGISTRATE: Magistrate Hughes ORDER: The Application for an Offender Reporting Order pursuant to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), section 12E(1)(b) is refused. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – NON-CUSTODIAL ORDERS – GENERALLY – OTHER TYPES OF ORDER – where respondent already subject to ongoing supervision and Protection Order – where respondent is single mature woman - where respondent left threatening voicemails for her daughters – where respondent used manipulative language - where offending not opportunistic nor targeted towards children in broader community – where respondent’s children closer to age of majority – where limited and dated criminal history – where respondent’s children interstate and no longer in her care – where respondent has negligible access to her children – where protective factors present – where perceived risk to children not demonstrable to requisite standard of proof -- 1 of 7 -- 2 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 3, s 8, s 9A, s 12B, s 12D, s 14, s 18, s 19, s 20, s 21, s 22, s 25, s 26, s 30, s 32, s 35, s 36, s 40A, s 50, s 68, s 74A Briginshaw v Briginshaw (1938) 60 CLR 336 C, M v Commissioner of Police [2014] SASC 163 Commissioner of Police v ABC [2010] WASC 161 Director of Public Prosecutions v MJB [2021] QDC 222 R v Bunton [2019] QCA 214 R v Rogers [2013] QCA R v SBP [2009] QCA SOLICITORS: Applicant in person Nightingale Law for the Respondent What is this Application about? [1] For the first time in her life, in the last six months LOR has been taking small but significant steps to get her life on track. Although she has been homeless, she is currently residing in a Department of Housing unit. She has been reaching out to agencies and other support groups for help. She has been complying with all her bail conditions. And she has a job to help her get by. [2] However, because LOR has been convicted for communications she made to her two teenage daughters in April and November 20231, an Offender Reporting Order is sought. In addition to her current sentence that will require her ongoing supervision in the community and the current Protection Order requiring LOR to be of good behaviour and not commit associated domestic violence to her daughters, the Reporting Order would have significant impacts for LOR: (a) Reportable offenders must be registered on a child protection register;2 (b) Reporting obligations include an initial report of the offender’s personal details and monthly periodic reports to the police commissioner, until the reporting period ends;3 1 The Application and supporting material refer to other ostensible grounds for which LOR has not been convicted and therefore cannot not form the basis for an Order under the Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 12B. 2 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 68. 3 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 14, s18(1), s 19. -- 2 of 7 -- 3 (c) The initial report must be in person and subsequent periodic reports in such ways as the Police Commissioner directs;4 (d) The reporting obligations start when sentenced and continue for five years;5 (e) A person stops being a reportable offender at the end of all reporting periods to which they are subject;6 (f) A reportable contact with a child means having physical contact or oral or written communications;7 (g) It is an offence to not comply with reporting obligations and no time limit is set to prosecute the offending;8 (h) Personal details that must be reported include: the offender’s name, date and place of birth, tattoos or distinguishing marks (whether existing or since removed) and details of where the offender generally resides; changes in residence; details of any child with whom the offender has a reportable contact; the nature of employment including the name of the employer and place of employment; details of any club or organisation of which the offender is a member and if there are child members or child-related activities; the make, model and colour of any vehicle owned or driven within a year period; details of any telephone or internet services used; details of any social networking; details of any email addresses and internet user names; passport details; and if intending to travel, the reasons for travel;9 (i) Any change in personal details must be reported, some within 24 hours;10 (j) Any intention to leave Queensland for 48 or more consecutive hours must be reported, even if travel is only elsewhere in Australia;11 (k) Any change in travel plans must be reported if the offender is outside of Queensland while travelling and the return to Queensland must be reported within 48 hours;12 (l) Reports must be made at a local police station where the offender is currently residing, or as directed;13 4 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 26. 5 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 5(1)(b), s 36(1)(a). 6 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 8(b). 7 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 9A(1). 8 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 5, s 52. 9 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), Schedule 2. 10 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 19A. 11 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 20. 12 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 21, s22. 13 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 25. -- 3 of 7 -- 4 (m) On the initial report, police have power to take fingerprints;14 (n) Police have power to compel photographs be taken and to retain photographs, documents and fingerprints indefinitely;15 (o) Reportable offenders can be given notice to provide DNA to police;16 and (p) A reportable offender must obtain the Police Commissioner’s written permission before changing, or applying to change, their name.17 [3] The Courts have described these obligations as “onerous”.18 Any breach of the Order also exposes LOR to prosecution and the prospect of five years imprisonment.19 Compliance would also adversely impact LOR’s social wellbeing.20 Although this adverse social impact is not determinative, the standard of proof is commensurate to the seriousness of all these consequences for LOR if an Order is made.21 What does the Court consider in deciding whether to impose an Offender Reporting Order? [4] The Court may make an Order if satisfied on the balance of probabilities that an offender poses a risk to the lives or sexual safety of one or more children, or of children generally.22 In assessing risk, the Court must consider when the conduct occurred, the nature and seriousness of the conduct, the differing ages and the relationship of the offender and victim children, the offender’s criminal history, the offender’s access to children, relevant needs of the offender including accommodation and health needs and anything else relevant.23 Importantly, the risk must be more than a fanciful, minimal or merely theatrical risk.24 What is the nature and seriousness of the offending and when did it happen? [5] In April 2023 and while suffering a manic episode following the death of her father, LOR left voicemails for two of her daughters.25 One daughter had been expelled from school for using drugs while in LOR’s care. The voicemails have a tone of desperation and use threatening and intemperate language. 14 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 30. 15 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 32. 16 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 40A. 17 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 74A. 18 R v Bunton [2019] QCA 214 at [30], citing R v SBP [2009] QCA 408 at [20] and R v Rogers [2013] QCA 192 at [40]. 19 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 50. 20 R v Rogers [2013] QCA 192 at [40] to [42]. 21 Director of Public Prosecutions v MJB [2021] QDC 222 at [16] to [18], citing C, M v Commissioner of Police [2014] SASC 163, Briginshaw v Briginshaw (1938) 60 CLR 336. 22 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s12B(2)(a). 23 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 12D. 24 Director of Public Prosecutions v MJB [2021] QDC 222 at [14], citing Commissioner of Police v ABC [2010] WASC 161. 25 Statutory Declaration of Acting Sergeant Benjamin Morrow sworn 24 January 2024. -- 4 of 7 -- 5 [6] Seven months later in November 2023, LOR sent letters and made phone calls to one of her daughters asking her to encourage the expelled daughter to consent to LOR returning to her family home. The communications use emotionally manipulative language. [7] Fundamental to being a parent is to act protectively. LOR’s communications were the very behaviour she should protect her children from. The offending was undoubtedly distressing for LOR’s daughters. No parent should ever interact with their children the way LOR did. [8] However, offending against children encompasses a very wide spectrum of behaviour and comparable seriousness.26 Relevant to the offending is that LOR was experiencing significant stressors, including the breaking up of her family. The first offending occurred over a year ago within a very compressed timeframe and at a time when LOR was suffering acute loss. The second offending occurred some eight months ago. None of the offending was opportunistic nor targeted towards children in the broader community. [9] The offending was not without context. But nor was it excusable. What are the differing ages and relationship of the offender and victim children? [10] LOR is the mother of the two victim children. At the time of the first offending, LOR was 44 years old and the first victim child was 15 years old. At the time of the second offending, LOR was 45 years old and the second victim child was 16 years old. All children are vulnerable because of their age and development. However, the significance of the age disparity is tempered to a degree by the children being closer to the age of majority. How is the criminal history relevant? [11] The reporting regime focuses on the protection of the lives of children and their sexual safety.27 Offences of a sexual nature against children are intrinsically serious.28 Prior to these offences, LOR has only one dated child-related conviction from 2010. 29 That did not involve sexual conduct and she has no convictions for child abduction or child harm. What is the offender’s access to children? [12] Significantly, all of LOR’s six children are now older and apart from her, both in distance and time. They are not in her care and live interstate. She has had no contact with them for many months. The adult children live independently and the others with their father. The Department of Child Safety has an interest in LOR and her children. [13] The two victim children have Protection Orders. Any reunification would require involvement of, and supervision by, authorities.30 Her access to the victim children 26 R v Rogers [2013] QCA 192 at [36]. 27 Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 3. 28 R v Rogers [2013] QCA 192 at [36]. 29 Statutory Declaration of Acting Sergeant Benjamin Morrow sworn 24 January 2024, Annexure A. 30 Director of Public Prosecutions v MJB [2021] QDC 222 at [26]. -- 5 of 7 -- 6 is therefore negligible. There is no evidence of her intending to have more children.31 [14] She is not in child-related work and lives alone in public housing. Her access to children in the broader community is therefore limited. What are the offender’s accommodation, health and other needs? [15] LOR has been through a lot. Her parents separated when she was 10 years old. She was exposed to sexual abuse by a family member who has since died. She became pregnant when she was 14 years old. Her parents instigated the termination of that pregnancy. She then met the father of her children and had her first child when she was 16 years old. The 21-year relationship was domestically violent. [16] She has been diagnosed with bipolar disorder, post-traumatic stress disorder and a major depressive disorder. Unfortunately, about five years ago LOR also became addicted to methylamphetamine. [17] A rare constant during LOR’s difficult childhood was her grandfather. He died in April 2023. She was also the carer for her father, who had significant health issues. He died a week earlier than her grandfather. [18] Despite this traumatic history, LOR is working on her issues. Glimmers of hope are appearing. She is medicated for her mental health issues and engaging appropriately with medical providers. A support network is also helping her. Although she has had periods of homelessness, she is now in a unit provided by the Department of Housing. Having a home is fundamental to rehabilitation. These protective factors reduce risk. What else is relevant? [19] LOR is at a delicate time in her life. The additional onerous requirements of a Reporting Order risk would expose her to the risk of prosecution and five years imprisonment – even for an inadvertent breach. That risks setting her up to fail at a time when she is working on her issues and starting to get some help from agencies and support groups. With ongoing help from agencies and support groups, she can continue to focus on working through her issues. That focus will be for the long- term benefit of her and the broader community. Should LOR be subject to an Offender Reporting Order? [20] LOR has been through a lot. She may continue to go through a lot. However, at this time an Offender Reporting Order is not part of that lot. [21] This is because any perceived risk to children is not demonstrable to the requisite standard of proof. LOR does not and is unlikely to have contact with the victim children. Her offending was not directed towards children in the broader community. LOR is already subject to a Protection Order naming the victim children. Moreover, as the Court of Appeal has noted in similar cases,32 she will not escape ongoing supervision within the community due to her sentence. 31 cf Director of Public Prosecutions v MJB [2021] QDC 222 at [26]. 32 R v Rogers [2013] QCA 192 at [42], R v Bunton [2019] QCA 214 at [37]. -- 6 of 7 -- 7 [22] The Application for an Offender Reporting Order is therefore refused. -- 7 of 7 --